Nguyen Thi Kim Ngan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1223/2022

[2024] HKCFI 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1223 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 October 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 31 January 2024.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 26, is a Vietnamese. She entered Hong Kong illegally on 25 July 2021 from Mainland China and was arrested by the police on 27 July 2021. The applicant lodged a non-refoulement claim on 20 November 2021 and 1 December 2021. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor, Madam Ha (“Madam Ha”) because she failed to repay the loan.

5.According to the applicant, she borrowed money from Madam Ha at the beginning of 2017 to start up a coffee business with her boyfriend. The applicant claimed that Madam Ha was associated with the triad. Upon signing the loan agreement, Madam Ha lent money to the applicant. The applicant gave all the money borrowed to her boyfriend. By early 2018, the coffee shop closed down due to intense competition and her boyfriend fled after taking away all the money. Soon after the closing down of the coffee shop, Madam Ha together with nine of her underlings came to her home demanding loan repayment. The applicant was slapped on her face and her brother was beaten to mouth bleeding. Madam Ha and her gang also damaged the furniture and electrical appliances at her home with knives and wooden sticks. They finally left after the applicant agreed to repay the loan, but warned her that she would be killed if she failed to do so.

6.The applicant knew that she was unable to repay the loan. In order to avoid Madam Ha, she relocated to Ho Chi Minh City a month after the assault incident, i.e. mid-2018. Her mother and her brother also moved to live with her aunt in Ho Chi Minh City for a few months, after which they returned home. The applicant was informed that while she was away in Ho Chi Minh City, Madam Ha and her underlings were asking for her whereabouts at her hometown and threatened to kill her.

7.Fearing about her own safety, the applicant left Vietnam for China in late 2018 with the assistance of an agent. Upon arrival to China, the applicant realised that the agent had arranged her to marry a Chinese man (“Wang”). The applicant agreed to stay and become the nominal wife of Wang. Subsequently however, due to communication problem, Wang lost patience towards the applicant and would even assault her occasionally. As the applicant could no longer tolerate the behaviour of Wang, she left Mainland China by mid-2021. Eventually she arrived in Hong Kong illegally on 25 July 2021.

8.The applicant maintained contact with her family since she left Vietnam. She was informed by her mother that Madam Ha and her underlings were still seeking her whereabouts and threatened to kill her.

9.The applicant was of the view that she could not seek protection from the police because they would not bother handling a private debt dispute. She also thought the police were corrupt and they would only help the rich and powerful. She considered relocating to other places within Vietnam not viable as well because Madam Ha had lots of underlings so that she could still easily locate her.

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 21 January 2022 (“the Director’s Decision”).

The Director’s Decision

11.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the past behaviours of Madam Ha showed no real intention to severely harm or kill the applicant [11]; (ii) state protection will be available to her upon her return [13]-[18]; (iii) internal relocation is viable [12], [19]-[23] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[35] or Torture risk [36]-[39].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 8 July 2022, the Board conducted an oral hearing.

14.Having considered the applicant’s evidence, the Board had little doubt about her debt problem and found her credible on the core issues in the account of events given. Yet, the Board was of the view that the previous actions taken by Madam Ha were merely intended to pressurise the applicant to repay the loan, rather than to really cause harm on her, so that she did not face a real and imminent risk [34]-[47].

15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk [28]-[57], [80], BOR 2 and BOR 3 risk [81]-[89], [102]-[107] or Persecution risk [90]-[101]. Furthermore, state protection [58]-[79] and internal relocation [108]-[112] were also available. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

16.The applicant has filed Form 86 dated 8 November 2022 for leave to apply for judicial review of the Board’s Decision.

17.The applicant attached a copy of the Board’s Decision to her affirmation without setting out any specific ground in support of her application.

DISCUSSION

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understood the Board’s Decision and she was at liberty to speak before the Board. She asked to be allowed to stay in Hong Kong.

20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.For the reasons given by the Board in paragraphs 14 and 15, the Board found that the applicant failed to show that she has any real and genuine risk of harm as she alleged if she returns to Vietnam.

22.The applicant fails to show that there is any valid reason to challenge the Board’s Decision.

23.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

24.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 19^th day of March 2024

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1